UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5266

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

JASON ALLEN WHITTINGTON, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:06-cr-00491-LMB-2) 

Submitted: August 17, 2009 Decided: September 3, 2009 

Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Michael C. Sprano, THE SPRANO LAW FIRM, Fairfax, Virginia, for 

Appellant. AeJean Cha, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Jason Allen Whittington pled guilty pursuant to a plea 

agreement* to possession with intent to distribute marijuana, 

methylenedioxymethamphetamine, methylenedioxyamphetamine, and 

cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) 

(2006), and possession of a firearm in furtherance of a drug 

trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). 

Whittington was sentenced to fifty-one months for his narcotics 

conviction, and sixty months for his weapons conviction, the 

latter term to run consecutive to the former term, for a total 

of 111 months. Counsel for Whittington has filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), 

explaining that he found no meritorious grounds for appeal but 

suggesting that Whittington’s: (i) guilty plea was involuntary 

and not supported by a sufficient factual basis; and (ii) 

sentence is unreasonable because the district court refused to 

run his federal sentence concurrent to the state sentence 

Whittington was then serving. Counsel also moved for permission 

to withdraw from further representation of Whittington. 

Whittington filed a pro se supplemental brief, asserting that 

 *

 Whittington waived his right to appeal his conviction and 

sentence in his plea agreement. Because the Government failed 

to assert the waiver as a bar to the appeal, however, we may 

undertake an Anders review. United States v. Poindexter, 

492 F.3d 263, 271 (4th Cir. 2007). 

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his attorney was ineffective for failing to object at sentencing 

to the district court’s purported failure to consider the 

18 U.S.C. § 3553(a) (2006) factors and his troubled childhood 

before imposing his sentence. The Government has declined to 

file a responding brief. Finding no error, we affirm the 

district court’s judgment and deny counsel’s motion to withdraw. 

 In accordance with Anders, we have reviewed the 

record in this case and have found no meritorious issues for 

review. The record reveals that the district court fully 

complied with the Fed. R. Crim. P. 11 requirements during the 

plea colloquy, ensuring that Whittington’s plea was knowing and 

voluntary, that he understood the rights he was giving up by 

pleading guilty and the sentence he faced, and that he committed 

the offenses to which he was pleading guilty. Additionally, 

Whittington attested during the hearing that he committed the 

crimes to which he was pleading guilty, that he fully understood 

the ramifications of his guilty plea, and that he was made no 

promises outside those made by the Government in his plea 

agreement. Moreover, Whittington explicitly agreed in his 

statement of facts that if the matter went to trial, the 

Government would be able to establish the elements of the crimes 

to which he pled guilty beyond a reasonable doubt. Because no 

error was committed during the Rule 11 hearing, and since 

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Whittington’s plea was knowing, voluntary, and supported by a 

sufficient factual basis, we affirm Whittington’s convictions. 

 We also affirm Whittington’s sentence. After United 

States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed 

for reasonableness, using an abuse of discretion standard of 

review. Gall v. United States, 128 S. Ct. 586, 597 (2007). The 

first step in this review requires the court to ensure that the 

district court committed no significant procedural error. 

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). 

Assuming the district court committed no significant procedural 

error, this court must next consider the substantive 

reasonableness of the sentence imposed, taking into account the 

totality of the circumstances. Id. at 161-62. A sentence 

within the properly calculated Guidelines range may be afforded 

an appellate presumption of reasonableness. See Rita v. United 

States, 551 U.S. 338, 341 (2007); see also Nelson v. United 

States, 129 S. Ct. 890, 892 (2009) (emphasizing that the 

presumption of reasonableness accorded a within-Guidelines 

sentence is an appellate court presumption rather than a 

presumption enjoyed by a sentencing court). 

 We find the district court’s 111-month sentence to be 

reasonable. First, Whittington was sentenced to the statutory 

mandatory minimum on his weapons conviction and the district 

court was obligated to run the sentence on that conviction 

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consecutive to the sentence imposed for Whittington’s narcotics 

conviction. See 18 U.S.C. § 924(c). Accordingly, that sentence 

is per se reasonable. See United States v. Farrior, 535 F.3d 

210, 224 (4th Cir.) ("A statutorily required sentence . . . is 

per se reasonable.") (emphasis in original), cert. denied, 129 

S. Ct. 743 (2008). 

 We also find that the district court committed no 

reversible procedural error in sentencing Whittington and find 

that his within-Guidelines sentence on the narcotics conviction 

is substantively reasonable. See Rita, 127 S. Ct. at 2459. We 

reject Whittington’s assertion that the district court erred 

when it refused to run his federal sentence concurrent to the 

state probation revocation sentence he was then serving. See

U.S. Sentencing Guidelines Manual § 5G1.3(c) (2007) (“[I]n cases 

in which the defendant was on . . . state probation . . . at the 

time of the instant offense and has had such probation . . . 

revoked . . . the Commission recommends that the sentence for 

the instant offense be imposed consecutively to the sentence 

imposed for the revocation.”). 

 Last, we reject on this appeal Whittington’s assertion 

that his attorney was ineffective for failing to object to the 

district court’s purported failure to consider the § 3553(a) 

factors and his troubled childhood before imposing his sentence. 

An ineffective assistance of counsel claim should generally be 

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raised by a habeas corpus motion under 28 U.S.C. § 2255 (2006) 

in the district court. See United States v. Richardson, 

195 F.3d 192, 198 (4th Cir. 1999). Although an ineffective 

assistance claim may be cognizable on direct appeal if “it 

‘conclusively appears’ from the record that defense counsel did 

not provide effective representation,” Id. (internal citation 

omitted), it does not conclusively appear on the record that 

counsel provided ineffective representation or that Whittington 

was prejudiced by counsel’s failure to object. See Strickland 

v. Washington, 466 U.S. 668, 687-88 (1984). Accordingly, we 

conclude that an ineffective assistance of counsel claim is not 

cognizable on this appeal. 

 Having reviewed the record in this case and finding no 

meritorious issues for review, we affirm the district court’s 

judgment. At this juncture, we also deny counsel’s motion to 

withdraw from further representation of Whittington. Rather, 

this court requires that counsel inform Whittington in writing 

of his right to petition the Supreme Court of the United States 

for further review. If Whittington requests that a petition be 

filed, but counsel believes that such a petition would be 

frivolous, then counsel may motion this court for leave to 

withdraw from representation. Counsel's motion must state that 

a copy thereof was served on Whittington. We dispense with oral 

argument because the facts and legal contentions are adequately 

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presented in the materials before the court and argument would 

not aid the decisional process. 

 

 AFFIRMED